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Academic Licenses Rosen_ch05 Page 73 Tuesday, June 22, 2004 7:40 PM 5 Academic Licenses The BSD Gift of Freedom The first open source license, the original BSD (Berkeley Software Distribution), was designed to permit the free use, modification, and distribution of certain University of Califor- nia software without any return obligation whatsoever on the part of licensees. The term academic freedom usually means the freedom of a (tenured) professor to speak openly without risking his or her job. This presumably results in a dynamic and diverse commu- nity of thought that enriches everyone’s academic experience and results in the exploration of new ideas. But that isn’t the type of academic freedom that open source deals with. Academic open source licenses promote a slightly different kind of freedom, relating to the mission of an academic insti- tution to promote education and scholarship. Teachers are encouraged to publish their ideas rather than hide them under a cloak of secrecy. Students are expected to take what they learn and apply it to their own work, creating new ideas in turn. In pursuing this type of academic freedom, universities often forgo an immediate profit motive and instead consider 73 Rosen_ch05 Page 74 Tuesday, June 22, 2004 7:40 PM 74 Open Source Licensing the bigger benefit to society of releasing their intellectual prop- erty to the public. Of course, not all universities practice this ideal all the time. The University of California decided to use the BSD license to promote this latter type of academic freedom. It apparently concluded that some of its software would be more valuable if it were made freely available for all to copy, modify, and dis- tribute than if the University were to keep it secret or to attempt to sell it privately. Some suggest that the University could have accomplished this merely by waiving its copyright or dedicating its software to the public domain. Under the copyright law, though, there is no mechanism for waiving a copyright that merely subsists, and there is no accepted way to dedicate an original work of authorship to the public domain before the copyright term for that work expires. A license is the only recognized way to authorize others to undertake the authors’ exclusive copyright rights. In Chapter 4, I created a simple license to accomplish this goal: Simple License: The copyright owner of this software hereby licenses it to you for any purpose whatsoever. (This isn’t the BSD license. The grant in the BSD license is longer and more complex, but I’ll get to that in a bit. I’m using this one-sentence Simple License for illustrative purposes only.) The Simple License, if properly accepted, is a unilateral con- tract in which only the copyright owner has offered promises, in particular the promise to let you use the software as you see fit. The licensee has promised nothing but is nevertheless bound to the terms and conditions of the contract if he or she uses the software as licensed. Rosen_ch05 Page 75 Tuesday, June 22, 2004 7:40 PM 5 • Academic Licenses 75 Such unilateral contracts are formed all the time in daily life, although we don’t often think about their terms and con- ditions when we enter into them. That is because, for many commercial transactions, we leave it to the law to specify the implied terms of contracts that we enter. You can take comfort when you go to a store to buy a toaster that the store will return your money if the toaster is unsatisfactory, or will repair or replace the toaster if it doesn’t work as advertised. The only way for a store to avoid its implied promises is to expressly dis- claim them; it may sell you the toaster “AS IS” and “subject to all flaws.” Notice that you, the consumer, don’t promise anything to the store in return. You can use the toaster however you want, or not use it at all. The store and you have a contract even though only the store has made promises—in this case implied ones—about efficacy and safety. As with the purchase of a toaster, every other condition in the Simple License could be left to the legal defaults for software licenses—whatever those defaults are. Such a one- sentence license is fully compatible with the Open Source Principles, and in theory at least it could be approved by Open Source Initiative as a valid open source license. What are the licensor’s implied promises in this Simple License? The law prescribes that, at least in the case of a com- mercial or consumer transaction for goods, there are implied promises that the goods will perform as they were advertised to do. If software is goods, and if the software turns out to break computers or doesn’t perform the way its documenta- tion specifies, the licensor may be responsible to pay dam- ages—even when the license is silent about it. But software isn’t goods. The law in many jurisdictions hasn’t quite decided what it is. Implied promises for software con- tracts aren’t well defined. Rosen_ch05 Page 76 Tuesday, June 22, 2004 7:40 PM 76 Open Source Licensing The University of California didn’t want a dispute about whether software was goods. It merely wanted protection from implied promises, and it wanted to avoid having to pay dam- ages if a user was injured in any way by the software. It pro- tected itself with an express warranty disclaimer and an express liability disclaimer, about which more later. That added two sentences to what otherwise could have been a one-sentence license. The University of California also wanted to impose a few conditions that would be required of every licensee. (Ignore for a moment the particulars of those conditions.) How can a uni- lateral contract impose conditions on licensees if all the prom- ises are made by the licensor? The answer is that, under the law, a condition is not a promise. In the case of a unilateral con- tract like the BSD, the conditions must be satisfied by the li- censee or it relieves the licensor of his promise to let you have the software. The BSD license accomplished much more than simply giv- ing a particular piece of software away. By encouraging the contribution of software into a public commons of software available to anyone, it created a growing benefit to the Univer- sity of California and everyone else. As the theory goes, more and more people will contribute BSD-licensed software to the commons in response to, and as consideration for, earlier con- tributions. The huge amount of software now available under the BSD license (and similar academic licenses) has proven that this theory works in real life. The BSD license even allows software to be taken from that public commons and used in proprietary applications. There is no obligation for the licensee to return anything to the com- mons. But despite the absence of such an obligation, the BSD “gift of freedom” is being repaid over and over by companies Rosen_ch05 Page 77 Tuesday, June 22, 2004 7:40 PM 5 • Academic Licenses 77 and individuals who see more value to them in giving software away under an academic license than in keeping it private. BSD License as Template The BSD license has been through several revisions. The current version discussed in this chapter has been redesigned to work as a template appropriate for software other than the original Berkeley Software Distribution. A copy of the current version of the BSD license is shown in the Appendices. When a licensor says “I license my software under the BSD license,” that licensor is not suggesting that he or she is or rep- resents the University of California, or that the licensed soft- ware is or is derived from the original Berkeley Software Distribution. Instead, this sentence means only that the license is in the form of the BSD license, inserting the licen- sor’s own name as the name of the licensor and an original copyright notice instead of the copyright notice for that other university’s software. If you use software that purports to be under the BSD license, look for the license itself somewhere in the source code of the soft- ware. The license should be complete, with all blanks filled in. That text is the authoritative version of your BSD license, not the version shown in the Appendices. The BSD License Grant Here is the actual BSD license grant: Redistribution and use in source and binary forms, with or without modification, are permitted provided.... (BSD license.) I will describe the provided... clause (what is also called a proviso) soon, but first I need to describe just which of the Rosen_ch05 Page 78 Tuesday, June 22, 2004 7:40 PM 78 Open Source Licensing University of California’s intellectual property rights were actually being licensed by the first BSD license. Almost everyone believes that the redistribution and use clause of the BSD license was intended to include all of the exclusive intellectual property rights the University then owned for something called the “Berkeley Software Distribu- tion.” The fact that the BSD license does not expressly list those exclusive rights (e.g., copy, create derivative works, dis- tribute, perform, display, make, use, sell, offer for sale, import) doesn’t mean they intended any of those rights to be excluded from the license. The term redistribution means distribution again. This nec- essarily includes the right to make copies, since one cannot distribute software again without making copies.
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